On Friday 29 September 2017, the Lobatse High Court, per Justice Nthomiwa handed down judgment in a case which challenged the refusal of the Registrar of National Registration to change the gender marker on the identity document of a transgender man.

The Court held that the refusal to change the applicant’s gender marker was unreasonable and violated his rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment.

The Court ordered the respondents to change the gender marker on the applicant’s identity document (Omang) from ‘female’ to ‘male’ to protect his dignity and well-being.

The Court previously issued an order that the applicant’s names and personal details remain confidential. The applicant was represented by Tshiamo Rantao and Lesego Nchunga and supported by the Southern Africa Litigation Centre and Open Society Initiative of Southern Africa.

“This is an immense relief” says the applicant. “It has been difficult waiting for the matter to take its course through the courts, and I am hopeful that other persons who find themselves in a similar situation will be dealt with in a more respectful manner when they apply for new identity cards.”

“This is a monumental victory for the rights of transgender persons in the region. The judge’s finding that the refusal to change a transgender person’s identity documents violates constitutional rights, goes a long way in improving the lives of transgender persons”, says Tashwill Esterhuizen, LGBT and Sex Worker Rights Programme Lawyer at the Southern Africa Litigation Centre.

“It has been a difficult journey but we are elated with the outcome. The impact of this case should not be underestimated. If properly implemented, it has the potential to positively change the lives of transgender persons” says Ian Southey-Swartz, LGBTI Programme Manager at the Open Society Initiative of Southern Africa.

Background to case

The applicant is a transgender man. Though he was assigned a female sex at birth, he self-identifies as a man. The applicant presented psychological and medical evidence to the effect that his innate gender identity is and has always been male and that the failure of the State to formally recognise his gender identity has caused him significant trauma. The applicant submitted that his identity document should reflect his gender identity, which only became apparent after his birth. The applicant further submitted that the National Registration Act allows the Registrar to change any particulars of a registered person and to issue that person with a new identity card if there has been a material change to their circumstances.